Legal News

According to Steam's owner Valve Valve says that in 2023 Bucher launched a mass‑arbitration drive through his new practice, The Bucher Law Firm. As part of this push, he advised Steam users that pursuing arbitration alleging the platform monopolised the gaming market to keep prices artificially high was a better route than a class action. Valve also contends Bucher embarked on the campaign after being dismissed from Zaiger LLC and accused of taking its client list, again urging users to choose arbitration over a class action. His firm then issued a settlement demand that Valve characterises as extreme and beyond any plausible recovery, and submitted thousands of arbitration filings to the American Arbitration Association. In May, Bucher Law sought rulings in four of its cases to have the arbitration clause in the company’s former subscriber agreement declared unenforceable. Those applications were granted in July, after which Steam...

Investcom Global Ltd (incorporated under the laws of the British Virgin Islands) v PLC Investments Ltd (incorporated under the laws of The Republic of Liberia) and others [2024] EWHC 2505 ( Comm) What are the practical implications of this case? As ever, commercial parties and their advisers should remain alert to the hazards created by a defective or pathological arbitration clause. In this dispute, the arbitration provision within a shareholders’ agreement ( SHA) neither unequivocally identified any administering institution nor specified a juridical seat. That scenario forced the claimant to commence with an institution whose authority was later put in issue, and to accept that institution’s nomination of the arbitral seat, set as Toronto. When two respondents then brought Liberian proceedings to halt the arbitration, the English Court concluded it lacked jurisdiction to keep the injunction in place, because the claimant lacked a good...

Lawyers have lately leveraged the Federal Arbitration Act’s ( FAA’s) confirmation route to work around arbitration confidentiality promises. The tactic runs as follows: the winning side moves to confirm a confidential award, paid or unpaid; submits the award under seal as an exhibit to the confirmation motion; then urges the court to unseal it on the basis that filings on a court docket are presumed open to the public. As many courts disapprove of sealing and precedent imposes a demanding standard for sealing applications, this strategy has gathered momentum. In the Southern District of New York, for instance, even parties who promptly satisfied their awards in full saw those awards unsealed when claimants pursued confirmation after payment. The US Court of Appeals for the Second Circuit curtailed this manoeuvre last year in Stafford v International Business Machines Corp, yet, as the 25...

In this issue: Arbitration in England & Wales Arbitration under the AA 1996 Act International Arbitration Investment treaty arbitration Other arbitration and ADR-related news and developments Daily and weekly news alerts New and updated content Arbitration in England & Wales Quinn Emanuel must ID source of forged Deripaska report On 14 October 2024, a judge ordered Quinn Emanuel to disclose the identity of the intermediary who supplied a fabricated report implying that Russian industrialist Oleg Deripaska deceived arbitrators in a dispute with a former business partner. See: Quinn Emanuel must ID source of forged Deripaska report. Arbitration under the AA 1996 Act Binding nature of dispositive part of award and revival of tribunal’s jurisdiction In AZ v BY, the English Commercial Court affirmed that, in an arbitration governed by the Arbitration Act 1996, the dispositive section of an award is binding. The...

Spain announced that, for the first time, two ICSID arbitral tribunal majorities ruled on 11 October 2024 that they lack jurisdiction to hear purely European investment disputes. The resultant awards, totalling US$78.5m, stem from two separate and distinct renewable energy generation legal cases brought against Spain by European Solar Farms AS, incorporated under the laws of Denmark, and Sapec SA, a company domiciled in Belgium, Spain said. According to Spain’s statement, both decisions rely on very closely aligned and consistent reasoning and expressly point out that the Energy Charter Treaty bears the interpretation advanced by Spain and the European Commission, whereby the EU’s participation in the ECT, as a regional economic interest organisation, brings within its scope the supremacy of EU law in those areas of competence that member states have transferred to the EU......

Hala Kamel Zabal v Arya Trading Ltd and others, O. M. P. ( COMM) 252/2016 What are the practical implications of this case? When a set-aside petition questions the constitution of the arbitral tribunal, the court gives primacy to the parties’ arbitration agreement over the provisions of the A& C Act. So long as the arbitrator’s appointment conforms to that agreement, any departure from the A& C Act is treated as immaterial. Contracting parties should be mindful that an award can be impugned only where both of the following conditions are satisfied: the appointment of the arbitrator was not made in accordance with the arbitration agreement; and the arbitration agreement itself is at odds with a non-derogable provision of the A& C Act. Accordingly, parties ought to ensure their arbitration agreement does not clash with any non-derogable provisions of the A& C Act, thereby...

Whether it is liaising with clients, preparing marketing copy, polishing documents, and more, AI enables legal professionals to work faster and more efficiently. Relying on AI can deliver valuable knock-on benefits for firms. Notably, research indicates lawyer burnout is increasing. Offloading mundane and nonspecialised tasks to AI is one way to ease lawyers’ mounting pressures. Yet AI is no replacement for lawyers, and using it in a profession that demands precision and careful attention brings notable risks. For instance, AI can hallucinate, generating incorrect and misleading content that appears convincing. We have already seen lawyers face legal consequences for citing fabricated cases in briefs after leaning on Chat GPT for research. Client confidentiality is another issue. Many AI tools are not fully secure, as they may share submitted data with third parties or use it to train future versions of the system. This...

London's High Court directed the firm to reveal which consultancy supplied a report tied to a transaction between Deripaska and his erstwhile partner, Vladimir Chernukhin, concluding that a 'legally recognised wrong' had been done to the oligarch by its deployment. Mr Justice Neil Calver explained that the document, later exposed as a fake, was deployed to deliberately mislead the court in their dispute over the deal. He found that the involvement of Quinn Emanuel Urquhart & Sullivan LLP, which transmitted the report for litigation purposes, lent the paper a veneer of credibility and an appearance of reliability. Calver J stated he was satisfied there was a properly arguable case that a legally recognised wrong had been committed against the Deripaska parties, namely the use of the report in an attempt to pervert the course of justice, with Quinn Emanuel becoming...

AZ v BY [2024] EWHC 1847 ( Comm) What are the practical implications of this case? This ruling is important as it confirms the finality of a tribunal’s award under the EAA 1996. Flowing from the court’s findings, it is the dispositive portion of the award that generates a res judicata effect. All remedies, including orders, that the tribunal intends to grant must expressly appear in the dispositive section of the award in order to benefit from enforcement proceedings before the English courts. Any order omitted from the dispositive and found only in the reasoning, however clearly expressed, will not be treated as part of the dispositive and will, accordingly, remain unenforceable. It is, therefore, of primary importance for parties to ensure that their statement of relief, which usually provides the basis for the dispositive section of the award, is clearly...

Haide Building Materials Co Ltd v Ship Recycling Investments Inc [2024] SGHC 222 What are the practical implications of this case? Courts are increasingly intolerant of applicants who swamp proceedings with numerous grounds in an effort to make up for weak substance. Historically, courts felt compelled to address every ground, offering only gentle reproach and noting how such tactics were counterproductive. The mood has shifted: volume is no longer being indulged where it masks a lack of merit... Justice Mc Hugh of the Australian High Court observed in an address that when an appeal notice carries too many grounds, the strongest arguments become lost amid a clutter of inferior points ( Michael Mc Hugh AO QC, The Essence of Appellate Advocacy ( Opening Address, Australian Bar Association 2012 Appellate Advocacy Course)). Similar sentiments recur in judgments ( Xia Zhengyan v Geng Changqing [2015] 3 SLR 732, para 100) and in...

Ajay Madhusudan Patel v Jyotrindra S Patel [2024] INSC 710 What are the practical implications of this case? Although a non-signatory’s failure to “put pen to paper” may suggest an intention not to be bound by an arbitration clause, the judgment stressed that courts and tribunals should take a commercial, practical view when deciding whether that party nonetheless consented to join the arbitration agreement. Factors to weigh include the non-signatory’s role and participation in negotiating and performing the contract; whether they have actively taken on obligations under it; the parties’ mutual intention to regard the non-signatory as a contracting party; and the non-signatory’s relationship with one or more of the signatories. The judgment acknowledged that these assessments are frequently intricate, and courts should not embark on a mini-trial to reach a conclusion. Instead, the court’s remit is limited to...

Republic of India v Société CC/ Devas ( Mauritius) Ltd, Société Devas Employees Mauritius Private Ltd and Société Telcom Devas Mauritius Ltd, Paris Court of Appeal, 10 September 2024, Nos 24/00151 and 24/00152 What are the practical implications of this case? The key practical takeaways of these decisions are as follows. Under French law, third-party joinders are not permitted in annulment or enforcement proceedings concerning arbitral awards, unless the arbitration agreement expressly authorises them. As a result, those who subsequently obtain an interest in enforcement—such as third-party funders or other assignees—cannot participate throughout all phases of the enforcement process. Therefore, investors aiming to monetise and enforce arbitral awards should closely review the language of the underlying arbitration agreement, or any relevant treaties, before accepting a simple assignment of award-related rights. A wiser course for such investors is to obtain subrogation to the assignor’s rights......

In this issue: International Arbitration Other arbitration and ADR-related news and developments Daily and weekly news alerts New and updated content International Arbitration Netherlands—enforcement order granted for ICC award without substantive review of corruption allegations This ruling in Cardo v CBI concerns the Dutch enforcement of an arbitral award made in proceedings between Cardno Middle East Ltd (‘ Cardno’) and the Central Bank of Iraq (‘ CBI’). The tribunal declined to examine the substance of CBI’s bribery allegations because the hearing had already been concluded, and CBI only engaged after the closure of the proceedings, advancing those corruption claims at that late juncture. In the Netherlands enforcement case, the Amsterdam Court of Appeal ruled consistently with the recent set-aside jurisprudence of the Supreme Court in Russian Federation v HYV, which holds that corruption arguments should be assessed with caution and must be...

DHZ v DHY [2024] SGHC 236 What are the practical implications of this case? The Singapore courts have demonstrated a willingness to annul awards for infringements of natural justice when justified (see, for instance, BZW v BZV [2022] SGCA 1 and, more recently, DJO v DJP [2024] SGHC( I) 24). That said, Singapore remains firmly pro-arbitration, and the bar for setting aside an award is stringent. In particular, the courts are sceptical of attempts to re-argue the merits under the guise of alleged natural justice breaches; it is insufficient merely to assert that the tribunal reached the wrong conclusion on the merits. Put shortly, complaints cannot rest on disagreement with the tribunal’s evaluation; they must point to genuine procedural unfairness. Moreover, even where a breach of natural justice is established, the award will not be disturbed unless the applicant proves prejudice in that the breach...

CMBICDHAW INVESTMENTS LTD v CDH FUND V LTD PARTNERSHIP; CDH GRAND CATTLE HOLDINGS LTD; CDH INVESTMENTS MANAGEMENT ( HONG KONG) LTD [2024] HKCA 882 What are the practical implications of this case? CA restated that when no dispute exists between the parties to an arbitration agreement, an arbitrator has no jurisdiction; no controversy falling within the clause has arisen to invoke or trigger that jurisdiction, as such jurisdiction has not been invoked. The principles governing the proper construction of what amounts to a ‘dispute arising out of or relating to’ an agreement are settled; their operation turns on the particular facts of the case, and application is strictly fact‑dependent. The court did not give any ‘green light’ to bypass the arbitration agreement (there being no dispute in the first place), and so did not encourage replication of such steps or weaken the...

Russia & Yukos ex-shareholders look to Next Era in US$50bn arbitral award Moscow argues that the judgment in Next Era Energy Global Holdings BV v Kingdom of Spain strengthens its position that the DC Circuit should not defer to the arbitrators in this matter and must instead determine for itself whether Russia ever consented to arbitrate the dispute. It is asking the court for leave to lodge additional briefing advancing that contention, while it urges the appeals court to restore its sovereign immunity defence in the case. At the same time, the former shareholders are likewise seeking to persuade and to convince the DC Circuit that Next Era supports their stance in the appeal before the court, asserting it confirms that an arbitration agreement between them and Russia exists under the Energy Charter Treaty, which the Kremlin signed previously. The ECT was the...

Parkdenton Ltd v Euro General Retail Ltd trading as Eurogiant [2024] IEHC 387 What are the practical implications of this case? Although the challenge failed, the ruling highlights the issues that can arise when evidence is introduced and then withdrawn, and the need for a carefully reasoned award. The judgment also underlines the importance of jurisprudence from other jurisdictions in arbitration matters. Both parties cited English authorities on applications under section 68 of the Arbitration Act 1996 ( AA 1996). What was the background? The dispute concerned a rent review in the lease of a retail unit......

What are the practical implications of this case? The BGH’s ruling carries notable consequences for the validity of arbitral awards regarding formalities such as signatures. It emphasised that courts must, of their own motion, confirm compliance with all procedural conditions in Section 1059 of ZPO, even where the parties do not raise them. This includes verifying that the arbitrators have signed the award, or that there is a legitimate explanation for any missing signature. A refusal to sign, or a determination that obtaining a signature should be avoided, constitutes a proper reason under Section 1054 (1) sentence 2 of ZPO. An instrument that fails to satisfy these formalities is not an award within the meaning of Section 1059 of ZPO at all, and therefore cannot be the subject of an application to set aside. Consequently, German courts should not demand elaborate...

X and YCo v ZCo [2024] HKCFI 695 What are the practical implications of this case? The tribunal is not obliged to trawl through all documents and materials to locate the issues; it is for the parties to identify the key questions put to the tribunal for decision. The Hong Kong Courts will give short shrift to parties attempting to overturn awards on matters not addressed in opening and closing submissions for the hearing. Where a list of issues is agreed, parties must ensure every critical point is included, as it is the court’s ‘useful starting point’ when determining what issues were before the tribunal. What was the background? The plaintiffs entered into a Share Subscription and Purchase Agreement ( SPA) under which ZCo purchased shares in the company from the second plaintiff ( YCo). Upon completion of the SPA, ZCo held 65% of the...

Consumer Arbitration— Wells Fargo & AAA under scrutinity for alleged misrepresentation Filed in California federal court late last week, a new suit by plaintiff Joseph Bacigalupi claims Wells Fargo and the American Arbitration Association ( AAA) committed fraud by assuring consumers that arbitration is simpler and cheaper than taking cases to court. The pleading contends the reverse is true. According to the complaint, 'the representations by Wells Fargo and AAA used to trick consumers into agreeing to arbitration are untrue.' It further asserts that 'the touted arbitration regime is laden with intricate, burdensome rules, is improperly skewed by withholding consumers’ access to their own records and therefore to a genuinely fair hearing, and is anything but a speedy or cost-efficient forum.' The action also contends that the AAA arbitration provision embedded in Wells Fargo’s consumer agreements breaches California’s unfair competition law because it compels...